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Civil Liability – When is a risk obvious?

In the recent case of Council of the City of Sydney v Bishop [2019] NSWCA 157, the Court of Appeal has analysed the operation of s5F of the Civil Liability Act 2002 (CL Act). This section sets out the meaning of an ‘obvious risk‘. Under the CL Act, if a risk is obvious, there is no duty to warn a person of it.

The facts

In the evening on 31 January 2013, the plaintiff tripped and fell while attempting to step up onto a kerb that separated a paved laneway from a slightly higher footpath in an exclusively pedestrian precinct. The kerb was constituted by a strip of concrete. Between the kerb and the footpath, there was a metal drain that was approximately twice the width of the concrete kerb. While the kerb had a ‘light-coloured surface’, the laneway, which it bordered, was a ‘dark grey pavement’.

The plaintiff injured herself as a result of her fall and sued the City of Sydney (Council) in the District Court for damages in negligence. The plaintiff claimed that the Council was the occupier, or at least the controller, of the relevant laneway and the kerb.

The District Court held that the Council:

owed a duty of care to warn the plaintiff of the height differential at the kerb,

was negligent in failing to install or requiring the developer to install a yellow reflective strip along the length of the kerb (which a reasonable person in the Council’s position would have taken the precaution of doing), and

that such negligence caused the plaintiff’s fall and injuries.

The Court of Appeal’s decision

The Council challenged the District Court’s findings, arguing that the risk at issue (being the risk of tripping on the kerb or sustaining an injury from falling as a result of tripping) was an ‘obvious risk‘ for which there could be no duty to warn (being a duty to warn the plaintiff of the height differential at the kerb).

The issue of whether or not the Council owed the plaintiff a duty of care at all was not a question raised on appeal.

The majority of the Court of Appeal reversed the District Court’s decision and allowed the appeal, finding that:

if there was a duty of care, the risk was an ‘obvious risk‘ as defined in s5F(1) of the CL Act, so there was no duty to warn the plaintiff of the height differential,

the risk of a person tripping on the kerb was not such that a reasonable person in the Council’s position would have taken the precaution identified by the District Court (being the placement of a reflective yellow strip along the length of the kerb), and

even if duty and breach were established, the plaintiff did not prove that her injuries were caused by the breach. The plaintiff was aware of the location of the kerb although she was not looking at it, and a more prominent colouring of the kerb would not have told her anything that was not already present in her mind. As such, the absence of a yellow reflective strip was not a necessary condition of her injuries.

Brereton JA disagreed, finding that the risk of harm posed by the kerb, particularly towards its southern part where it became progressively less noticeable, was not obvious. Further, given the particular nature and user of the pedestrian precinct and the progressive reduction in height of the kerb, he found that a reasonable person in the Council’s position would have installed or required the installation of a reflective yellow strip along the length of the kerb.

The Court of Appeal’s consideration of ‘obvious risk’

Section 5H(1) of the CL Act provides that:

A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

Section 5F of the CL Act provides that:

(1) … an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

In his consideration of ‘obvious risk‘, Macfarlan JA referred to observations made in the High Court decision of Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29, which involved broadly similar facts. In that case, the plaintiff fell after stepping from a concrete footpath onto a lower earthen verge and the High Court held that Hawkesbury City Council, which was the authority responsible for the footpath and road, was not negligent either in the construction of the relevant footpath or in not keeping the concrete strip and verges level.

At paragraph [28] of his judgment, Macfarlan JA stated that:

As in Ghantous v Hawkesbury City Council, there was a “discernible difference” between the kerb and the lower level and “[t]here was no concealment of the difference in height. It was plain to be seen”. Further, as the extracts from that case above indicate, occupiers are entitled to assume that people will take care not to trip on a multitude of obstacles, both large and small, but are likely to be in their paths in walking from one place to another. Pedestrians are not entitled to assume that they are traversing “a level playing field”.

In the circumstances of the present case, Macfarlan JA found that the plaintiff had failed to discharge the onus of proof, to show that the kerb was not sufficiently discernible to pedestrians at night, and held (Basten JA agreeing) that: ‘… the kerb, being differently coloured to the laneway, gave a sufficient visual cue to pedestrians of a change in height’ (see paragraph [25]). Further, and with regard to the precaution identified by the District Court, Macfarlan JA held that: ‘It is difficult to see how the application to the kerb of a “reflective yellow strip”… would have added significantly to the prominence of the kerb, at least during daylight hours’ (see paragraph [21]).

In conclusion, Macfarlan JA held that:

There was nothing in the circumstances of the present case that rendered it necessary for the appellant to draw further attention to the step constituted by the concrete kerb. It was a hazard of an ordinary character that a person walking through the pedestrian precinct could be expected to encounter and could be expected to watch out for (see paragraph [29]).

While each ‘slip and trip’ case needs to be considered having regard to its particular facts, the finding of the majority of the Court in this case indicates that the measures taken by the Council to distinguish the different levels (being the use of different coloured materials) was reasonable and sufficient to ensure that the risk was obvious. Therefore, those in control of land do not have to use every means available to them to identify a risk.

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